SENTENCING STATEMENTS

On sentencing, Lord Scott said:

“This is a truly tragic case which highlights some of the perils of the use of illicit drugs of variable and uncertain strength.  Two young men of good character who were much loved and capable of making positive contributions to society met and, within the space of approximately 20 minutes, one was dead and the other fated to serve a lengthy period in prison.

Darren McDade, on an indictment alleging murder, the jury found you guilty of the crime of culpable homicide by killing Kyle Zybilowicz on 23 July 2023, just over 20 months ago.  In convicting you, the jury accepted that the Crown had proved that you assaulted Kyle Zybilowicz by repeatedly stabbing and striking him on the head and body with a knife and a pair of scissors, but specifically confirmed that the charge was reduced from murder to culpable homicide on the basis of provocation.  In doing so, they rejected your evidence that you acted in self-defence.

There are three Victim Impact Statements in this case, prepared by Kyle Zybilowicz’s mother, Alison Taylor, his sister, Asha Rose Eden and his sister, Rebekah Taylor, who also gave evidence at trial.  They all describe the traumatic and enduring impact your killing of Kyle has had on them and the wider family, including three nieces who will never know ‘their fun uncle’.We heard much in the evidence about you and your good character but not so much about Kyle.  These Victim Impact Statements help to redress the balance.

Kyle’s mother describes him as ‘kind, loving, happy, loyal, genuine, hardworking, affectionate but most of all … caring’.  He ‘did his best to make people laugh’.  He had so much to look forward to, including starting a nursing course the very next month.  His death ‘has left a hole in [her] heart that could never be filled’.  They could not even see him one last time in death to say their farewells because of the cruel condition in which you left his badly wounded body.

His sister, Asha, speaks of her heartbreak at the loss to her and her children.  She describes the memorial service for Kyle at his place of work, the Queen Elizabeth University Hospital, in October 2023 which his family found overwhelming in the many accounts of how much Kyle had meant to others.  She speaks too of “the nightmares of what his final moments in this world were”.  She just wants “[her] little brother back”.

His sister, Rebekah, described within the family as his twin owing to how close they were, suffered not only the loss of her younger brother but the sheer trauma of finding his horribly injured body in his own home and having to give evidence about it at trial.  She is understandably haunted by that image.  Although not in any way to blame, she feels guilty because she had to break the news to the family.  As with the others, she describes suffering from severe anxiety now and an abiding sense of her and her daughter being unsafe, even in her own home.

She acknowledges that Kyle ‘had his struggles in recent years but he had worked hard to get back on his feet and she was very proud of him for it’.

It is clear that there has been a significant impact on that very close family.  Their accounts of loss are extremely moving and help me to understand more about the man whose life you took. 

Before passing sentence, I asked for a Justice Social Work Report.  This was with a view to finding out more about your background and any other relevant information in this perplexing case.

You gave the author of the report broadly the same account as you gave in evidence.  You have accepted responsibility for the killing from an early stage although you also sought to superimpose on events a narrative in which you were a wholly innocent victim when much of what you said nearer the time suggested the sort of loss of control classically leading in court to a finding of guilt of culpable homicide due to provocation.  It may be that you have struggled with the enormity of what you did but, however it has happened, you have not only abandoned some of the more credible and convincing accounts of loss of control you gave closer to the time, but you chose to deny that you ever gave such an account to your friend Sinead McEntee who found herself in a truly unenviable position due to the horrible coincidence of having been friends with both you and Kyle.  In what may have been drug-related amnesia or an attempt at self-preservation, you branded her a liar who had taken sides against you despite her true motivation appearing to be no more than concern for you.  Despite what might be considered the betrayal of a friend which was, even if not intended as such, an act of some cruelty, the jury most probably accepted that her account of your conversations represented the truth or as close to it as we may ever get.  Rather than having branded her a liar through your evidence, it may be that you would have been better to accept the truth of her evidence which may well be one of the main reasons you were not convicted of murder.  For the avoidance of doubt, your account at trial was of self-defence and not the loss of control necessary for provocation.  The jury rejected that account, disbelieving your evidence, so without the evidence of Sinead McEntee about loss of control, you may well have been convicted of murder.

The report expands on some of the evidence heard at trial about excessive consumption of alcohol and cocaine in the period leading up to your crime.  Obviously being under the influence of drugs is no excuse whatsoever for what you did.

I note that you appear to have been using your time in custody in a positive manner and to have engaged with therapeutic supports there.  It would be very much in your interests to build on any progress you have made by accepting the help and support available to you in custody in order not to relapse again as regards drugs and to develop more appropriate methods of addressing your mental health issues. 

I have seen also the psychiatric report dated 5 August 2024, prepared by Dr Doig.  I note the history of your mental health struggles as well as your use of cocaine and alcohol apparently in misguided and counter-productive attempts at self-medication

Strikingly, I note what Dr Doig says on page 5 of his report: 'The positive effects he experienced with cocaine were happiness, confidence and feeling full of energy.  He occasionally experienced weird thoughts and said he could be aggressive but never got into a fight.  He also said he could misunderstand or misinterpret someone’s words or actions.'

Dr Doig concluded that your mixed depressive and anxiety disorder could be considered an abnormality of mind but, at the time of the killing, they did not impair your ability to control or determine your actions.  It seems much more likely that whatever happened was caused or exacerbated by your use of cocaine, causing you to lose control of yourself and to attack Kyle Zybilowicz with a knife and scissors in a frenzied manner following some sort of attack on you, albeit one which did not result in any significant injury to you. 

I note also the terms of your letter addressed to me and intended as an apology to Kyle’s family.  While I have no doubt your words are sincere, there remain aspects of the relevant events untold even now, perhaps forgotten through drink and drugs and forever gone.

You are 34 years of age.  I note that you have no convictions and that it can genuinely be said that this serious incident was entirely out of character for you. 

Despite having heard all the evidence in this case, the full detail of what happened in that period of 20 minutes on 23 July 2023 remains unclear.  Those events represent a tragedy for all concerned.  Two young men, both loved and highly thought of, met for the first time while under the influence of drugs.  One was killed and the other will have to live forever with the consequences of his out of character actions that night.  It seems most likely that the use of drugs on the part of both young men has caused or at the very least contributed to wholly out of character behaviour with some sort of horrendous misunderstanding or miscommunication unexpectedly and quickly leading to violence with fatal consequences. 

I have considered all that is said in the Justice Social Work Report and all that has been said on your behalf by Mr Findlay, in particular that you have always accepted responsibility for the death of Kyle Zybilowicz.  Your previous good character, indeed the fact that what happened was completely out of character is also of significance as are your mental health struggles, albeit your self-medication of these problems with cocaine and alcohol has no doubt been a contributory factor in where you sit today. 

Nothing said or done here today, and no sentence I impose, will be enough to help Kyle Zybilowicz’s family with the devastating loss of a much loved son, brother, uncle, friend and colleague.  I require to impose a sentence of imprisonment to punish you for the brutal killing of another young man with his whole life ahead of him.  Had you been convicted of murder, you would have been sentenced to life imprisonment with a minimum period of around 18 years before you could be considered for parole.  Had the jury not confirmed their view that you killed Kyle following provocation, the sentence would have been a period of imprisonment into double figures. 

In all the circumstances, I impose a sentence of 8 years' imprisonment which will date from 27 July 2023.”